California Law on Failure to Notify Heirs

By Teo Spengler

To heir is human: These are the individuals who inherit an estate if the deceased did not leave a will. Most people have one heir or another under the law. Since the names are not listed in a will, the administrator in charge of a California probate must make a diligent effort to identify and locate them.

To heir is human: These are the individuals who inherit an estate if the deceased did not leave a will. Most people have one heir or another under the law. Since the names are not listed in a will, the administrator in charge of a California probate must make a diligent effort to identify and locate them.

Probate Terminology

If a person dies leaving a valid will, he is said to die testate. The persons named to inherit are called beneficiaries, and the executor named in the will is in charge of moving the estate through probate. If a person dies without a will, he dies intestate. In California, the probate court appoints an administrator to handle probate. One of the first jobs of the administrator is to identify and locate the deceased's heirs: his next of kin as described in the intestate succession statute. The law requires her to give written notice to each heir of the time and place of the initial probate hearing.

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Intestate Succession

California intestate succession law lists the relatives and the order in which they inherit. A surviving spouse or domestic partner is first on the list, followed by the decedent's children and then the decedents' parents. If these family members are dead, missing or nonexistent, the administrator must dig further into family history.

Due Diligence

An administrator is in a fiduciary relationship with the heirs and owes them the highest duty of good faith and fair dealing in every task she undertakes, including attempting to locate and notify them of the probate. In addition, probate rules specifically require that the administrator make a reasonable and diligent search for heirs. Generally this requires an active effort on her part, sifting through the decedent's documents, questioning family and friends, sending letters to last known addresses, and making use of every available tool to locate heirs. Before probate closes, the administrator must write down her due diligence efforts in a declaration to the court, which is made under penalty of perjury.

Failure to Exercise Due Diligence

When an administrator fails to exercise due diligence in her attempts to locate heirs and some heirs come forward after the close of probate, California law requires that the probate case be reopened. Any person who received property that he was not actually entitled to under the will is said to have been unjustly enriched. The court can rule that the unjustly enriched person is holding that property in constructive trust for the rightful heirs, which means that he actually cannot use the property but must transfer it to the proper owners, the late-appearing heirs. A dishonest or willfully negligent administrator may also be subject to civil or criminal penalties.

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What Is the Legal Procedure After the Death of a Person Who Doesn't Leave a Will?

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Administrator vs. Executor in a Probate

Executors and administrators have much of the same job. Each must guide a decedent's estate through the probate process, making sure his creditors receive notification of his death and payment of his debts, and ensure the estate's remaining assets pass to the decedent’s heirs or beneficiaries.The major difference between the two positions is in the way each receives appointment. Both are representatives of the estate and of the court. They’re duty-bound to act in the best interests of the decedent and to follow the letter of the law.

What Is an Appointed Executor of a Will?

A person names an executor, also called a personal representative, in her will. When the person dies, her will must be probated. Probate judges generally honor decedents' wishes by formally appointing executors identified in wills. If a person dies without a will, the court chooses someone to administer the decedent's estate. Relatives are usually considered first. However, if none are available, any party the court deems fit may serve.

Types of Heirs

In general, an heir is a person who is entitled to inherit all or part of a deceased person’s estate. However, in legal terms, heir has a narrower meaning. The term "heir” specifically refers to a person who inherits assets from the estate of a person who died without a will. There are two major types of heirs.

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